Opinion
9:13-CV-00070 (NAM/TWD)
07-12-2016
SEDNEY DELANO, Plaintiff, v. R. RENDLE, et al., Defendants.
APPEARANCES: SEDNEY DELANO Plaintiff, pro se c/o Delamo Sedney 2402 Bayswater Avenue Far Rockaway, New York 11691 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendants The Capitol Albany, New York 12223 OF COUNSEL: COLLEEN D. GALLIGAN, ESQ.
APPEARANCES: SEDNEY DELANO
Plaintiff, pro se
c/o Delamo Sedney
2402 Bayswater Avenue
Far Rockaway, New York 11691 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendants
The Capitol
Albany, New York 12223 OF COUNSEL: COLLEEN D. GALLIGAN, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
Pro se Plaintiff Sedney Delano has commenced this civil rights action under 42 U.S.C. § 1983 for violation of his rights under the Eighth and Fourteenth Amendments to the Constitution, arising out of an incident of excessive force alleged to have occurred on January 21, 2010, while he was incarcerated in the Clinton Correctional Facility ("Clinton"), and the injuries he sustained. (See generally Dkt. No. 6.) The named Defendants remaining after initial review of Plaintiff's Amended Complaint under 28 U.S.C. 1915A were Sergeant R. Rendle ("Rendle"), Corrections Office C. Strong ("Strong"), Corrections Officer J. Mailloux ("Mailloux"), Nurse Taylor ("Taylor"), Nurse Administrator Lecuyer ("Lecuyer"), and Douglas B. Collyer ("Collyer"). (Dkt. No. 13 at 17-18.) The action was subsequently dismissed with prejudice as against Collyer on prosecutorial immunity grounds. (Dkt. No. 98.)
According to New York Department of Corrections and Community Supervision Inmate Lookup records, Plaintiff was released to U.S. Immigration on conditional parole for deportation only on June 3, 2015. See http://nysdoccslookup.doccs.ny.gov/GCA00P00/WINQ120 (last visited July 11, 2016). The docket maintained in this case by the Northern District of New York Clerk's Office indicates that Plaintiff now resides in Paramaribo, Suriname, South America. (Dkt. No. 122.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Defendants Rendle, Strong, Mailloux, Taylor and Lecuyer have now moved for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 129.) Defendants summary judgment motion is limited to Plaintiff's (1) § 1983 claims for money damages against all Defendants in their official capacities; (2) Eighth Amendment claim for failure to intervene to protect Plaintiff from excessive force alleged against Mailloux; (3) Eighth Amendment claims for indifference to Plaintiff's serious medical needs alleged against Defendants Rendle, Strong, and Taylor; and (4) a Fourteenth Amendment violation of Plaintiff's right to privacy claim against Lecuyer. Id. Defendants are not seeking summary judgment on Plaintiff's Eighth Amendment excessive force claim against Defendants Rendle and Strong. Id.
Upon initial review, the Hon. Norman A. Mordue, Senior District Judge, did not construe Plaintiff's Amended Complaint as asserting either an equal protection or state law assault claim. (Dkt. No. 13 at 5.) Out of what appears to be an abundance of caution, Defendants have identified paragraph 51 of Plaintiff's amended complaint as having alleged those claims and seek summary judgment dismissing them. (Dkt. No. 129-2 at 19-20.) Plaintiff does not appear to have addressed either claim in his submissions. (See Dkt. Nos. 131-2, 131-30, 145.) In keeping with Judge Mordue's construction of Plaintiff's Amended Complaint on initial review, the Court finds that claims for denial of equal protection and state law assault are not a part of the review in this lawsuit.
In his Amended Complaint, Plaintiff alleged excessive force by Rendle, Strong, Mailloux, and as yet unidentified John Does 1 and 2. (Dkt. No. 6 at ¶ 2.) Plaintiff's Eighth Amendment excessive force claims against Rendle, Strong, and John Does 1 and 2 survived initial review of the pleading. (Dkt. No. 13 at 7-8.)
Plaintiff has opposed Defendants' motion and cross-moved for summary judgment on all of his claims, including his claims for excessive force against Strong and Rendle. (Dkt. Nos. 131, 136-137, 145.) Defendants have opposed Plaintiff's cross-motion. (Dkt. No. 139.) For reasons explained below, the Court recommends that Defendants' motion for partial summary judgment be granted in part and denied in part, and that Plaintiff's cross-motion for summary judgment be denied.
II. FACTUAL BACKGROUND
A. Incident in the North Yard and the Pat Frisk
On January 21, 2010, while Plaintiff was incarcerated at Clinton, Defendant Mailloux approached him in the north yard, told him to put his hands behind his back, and escorted him out of the yard into an empty commissary room. (Dkt. No. 129-4 at 3.) According to Mailloux, while on duty in the north yard, he was told by Wall Tower 10 that Plaintiff was acting suspiciously. (Dkt. No. 129-18 at ¶ 5.) When Mailloux approached Plaintiff, he observed him drop a clear bag and step on it. Id. As Plaintiff attempted to walk away, Mailloux recovered a bag with a green substance later determined to be 9 grams of marijuana. Id. Mailloux claims to have escorted Plaintiff to the north yard door, placed him in mechanical restraints, and turned him over to the escort staff. Id. at ¶ 6; see also Dkt. Nos. 129-5 at 1; 129-19 at 1.
Plaintiff contends that Mailloux and Strong escorted him from the north yard to the commissary room where Mailloux pat frisked him without incident. (Dkt. Nos. 6 at ¶¶ 23-24; 129-4 at 3-4; 129-26 at 1;131-32 at 14.) Mailloux denies pat frisking Plaintiff. (Dkt. Nos. 129-18 at ¶¶ 7, 13; 131-22 at 2.) According to Plaintiff, Strong called Rendle, and when Rendle arrived at the commissary, he told Mailloux and Strong to use a hand held metal scanner to search Plaintiff. (Dkt. No. 129-4 at 3.) Strong then told Mailloux to handcuff Plaintiff, and Mailloux, Strong, and Rendle escorted him to the facility emergency room. (Dkt. Nos. 6 at ¶ 27; 129-4 at 3.)
B. Strip Frisk, Alleged Assault, and Failure to Intervene
After Plaintiff was escorted to the emergency room, he was told by Strong to face the wall in the corner of an exam room. (Dkt. Nos. 6 at ¶ 28; 129-4 at 4.) According to Plaintiff, Mailloux, Rendle, and other officers were also present in the room and were standing behind Plaintiff. Id. Strong ordered Plaintiff to take off his clothing one item at a time and hand the items to him and to place his hands high on the wall after each item was removed. (Dkt. Nos. 6 at ¶ 29; 129-4 at 5.) Strong and Mailloux searched each item of clothing and threw it to the floor. (Dkt. No. 6 at ¶ 30.) Plaintiff claims that Mailloux and Rendle remained in the room while Strong conducted a strip frisk. (Dkt. Nos. 6 at ¶ 31; 129-4 at 5.) Mailloux contends he waited outside the emergency room while Plaintiff was strip frisked. (Dkt. No. 129-18 at ¶ 13.)
Plaintiff claims that after telling him to bend over and spread his buttocks, Strong slapped Plaintiff on the buttocks and told him to spread wider. Id. Strong and Rendle then began making derogatory comments about Plaintiff such as "This fucking nigger stinks," and "I should stick my baton up this nigger's asshole for stinking up the fucking room," while others in the room laughed. (Dkt. Nos. 6 at ¶¶ 32-34; 129-4 at 5.) Rendle acknowledges supervising the strip frisk done by Strong and claims it was done without incident or use of force. (Dkt. No. 129-13 at ¶¶ 8, 10.)
After the strip frisk, Strong ordered Plaintiff to get dressed facing the wall, and Plaintiff's hands were cuffed behind his back. (Dkt. No. 6 at ¶ 35.) According to Plaintiff, Rendle and three others then left the room to, as Plaintiff learned later, strip frisk another inmate who had been in the north yard, while Mailloux and Strong remained in the exam room with him. (Dkt. No. 129-4 at 5.) Nothing happened while Plaintiff was left alone with Mailloux and Strong. Id.
Rendle and two other officers returned to the exam room where Strong and Mailloux had remained. (Dkt. Nos. 6 at ¶ 39; 129-4 at 5-6.) Plaintiff claims that Strong then asked him whose drugs had been found in the vicinity of the north yard. (Dkt. Nos. 6 at ¶ 40; 129-4 at 6.) When Plaintiff responded that he did not know, Strong told him to turn around so that he could answer the questions when facing him. Id. According to Plaintiff, Strong punched him in the left side of his face near his ear and jaw when he turned around, and Plaintiff fell into the wall, hitting his head. (Dkt. Nos. 6 at ¶¶ 40-42; 129-4 at 6.) Plaintiff claims that Rendle then asked him the same question and punched him even harder in the right side of his face by his ear, causing him to fall to the floor in pain. (Dkt. Nos. 6 at ¶ 43; 129-4 at 6.) When Rendle told Plaintiff to "answer the fucking question," Plaintiff again responded that he did not know. (Dkt. No. 6 at ¶ 44.)
Plaintiff contends that after he fell, Strong stayed on Plaintiff's left side and began choking him while Rendle was on the other side punching him in the shoulder, ribs, and stomach area, while two other corrections officers began kicking his lower body and poking him in the ribs with a baton. (Dkt. Nos. 6 at ¶ 45; 129-4 at 6-7.) Rendle at one point turned Plaintiff on his side, and all four corrections officer kicked and stomped Plaintiff on his chest, shoulder, head, stomach, legs, and back. Id. Plaintiff estimates he was kicked twenty to thirty times. (Dkt. No. 129-4 at 7.)
Rendle then told Plaintiff to get up. (Dkt. No. 129-4 at 7.) When he was unable to do so, Strong and non-party Sergeant Guynut picked him up by the handcuffs and stood him up. Id. Plaintiff's knee gave out two or three times, and he fell. Id. Strong and Guynut half carried and half dragged Plaintiff from the emergency room to the Special Housing Unit ("SHU"), where he was placed in a holding cell. Id. According to Plaintiff, Rendle threatened him by telling him that if anyone asked him what happened he was to say that he had fallen and did not know what happened, and if he did not they would kill him like they had done in October 2009, when an inmate was beaten the same way and put in the box with no treatment and later died. (Dkt. No. 6 at ¶ 48.)
Both Rendle and Strong have denied using any force on Plaintiff in connection with the events on January 21, 2010. (Dkt. Nos. 129-13 at ¶ 10; 129-16 at ¶ 10.) Rendle and Strong have also denied observing anyone else assaulting or using force against Plaintiff in connection with the events on January 21, 2010. (Dkt. Nos. 129-16 at ¶ 11; 131-20 at 1.) Mailloux has denied using force against Plaintiff or observing anyone else use force on him on January 21, 2010. (Dkt. Nos. 129-18 at ¶¶ 14-15; 131-22 at 2.) Although it has been suggested by Mailloux and Rendle that Plaintiff may have been injured in an altercation with another inmate in the yard prior to the time he was brought in by Mailloux (Dkt. Nos. 106-3 at 68; 131-20 at 4), Plaintiff has denied having an altercation with another inmate on January 21, 2010. (Dkt. No. 129-4 at 4.) Furthermore, neither Mailloux nor Strong observed that Plaintiff had any injuries at the time he was brought to the north yard door on January 21, 2010. (Dkt. Nos. 106-3 at 68, 75; 131-9 at 1; 131-10 at 1.)
C. Injuries and Medical Treatment
Plaintiff was taken directly to SHU from the facility emergency room by Rendle, Strong, and Guynut without being given any medical care for injuries sustained in the assault. (Dkt. Nos. 6 at ¶ 52; 129-4 at 7.) Plaintiff was placed in a holding cell in SHU and while there heard Rendle, Strong, and Guynut have a discussion with the SHU sergeant, who told them he would not allow Plaintiff to be placed in SHU without a medical assessment. (Dkt. No. 129-4 at 7.) Plaintiff claims that Rendle told the SHU sergeant to put Plaintiff in SHU without a medical assessment, and the sergeant refused. Id.
After Strong and Guynut left Plaintiff at SHU, Defendant RN Taylor came to SHU to do a medical assessment of Plaintiff prior to his being housed in SHU. Id. at 8. Plaintiff claims that when the SHU sergeant told Taylor if he did not do a medical assessment of Plaintiff, Plaintiff would not be placed in SHU, Taylor told the sergeant that Rendle had instructed him not to document any significant, visible injuries or complaints by Plaintiff. (Dkt Nos. 6 at ¶ 53; 129-4 at 8.) Taylor was then told by the SHU sergeant to document something so that Plaintiff could be housed in SHU. (Dkt. No. 129-4 at 8.)
Taylor completed an Inmate Injury Report on January 21, 2010, in which he noted that Plaintiff gave no statement. (Dkt. No. 131-32 at 62.) In his Declaration, Taylor states that Plaintiff told him he did not know how he had injured his hand and did not report that he had been assaulted by staff. (Dkt. No. 129-21 at ¶ 12.) Plaintiff claims he did tell Taylor what had happened to him in the exam room. (Dkt. No. 129-4 at 9.)
According to Taylor, Plaintiff was taken to the facility emergency room so that the Inmate Injury Report could be prepared and photographs could be taken. (Dkt. No. 129-21 at ¶ 12.) In the Report, Taylor identified the nature of Plaintiff's injuries as slight inflammation of the left side of his jaw and his left hand. (Dkt. No. 131-32 at 62.) Taylor prescribed ice for Plaintiff's jaw and ibuprofen for as long as necessary. Id. Plaintiff claims Taylor disregarded all of his medical complaints and attributes that to Taylor's alleged instructions from Rendle not to document significant, visible injuries. (Dkt. No. 129-4 at 9.) Taylor denies that anyone told him not to record any of Plaintiff's injuries and contends he recorded all of the injuries he observed at the time. (Dkt. No. 129-21 at ¶¶ 13-14.)
Plaintiff claims he made numerous requests for medical treatment in the form of sick call requests describing complaints of a fractured nose, finger, ear-pain, bleeding, and contusions to chest, shoulder, arms, torso, back, and legs. (Dkt. No. 6 at ¶ 54.) Plaintiff was seen by a nurse in SHU on January 22, 2010, after putting in a sick call request on January 21, 2010, and he told her about his injuries, including that he could not hear and his ear was oozing, and all of the difficulties he was having physically. (Dkt. Nos. 129-4 at 10; 129-21 at ¶ 15.) Plaintiff did not go to the facility hospital on January 22, 2010. (Dkt. No. 129-4 at 10.) Plaintiff put in another emergency sick call request on January 22, 2010, and was again seen by a nurse in SHU on January 23, 2010, and again received no medical attention. Id. at 10-11; Dkt. No. 129-21 at ¶ 15.
On January 23, 2010, Plaintiff reported the alleged assault to high level Department of Corrections and Community Supervision (DOCCS) officials who were making the rounds in SHU with the Deputy Commissioners of Security, Programs, and Administration. (Dkt. No. 129- 4 at 11.) Plaintiff told them that he could not hear because his ear was hurting and his body was hurting. Id. The Deputy Commissioner of Administration told Plaintiff he would get medical attention as soon as she left SHU. Id. After the DOCCS officials left, corrections officers took Plaintiff to the emergency room where he was examined by a person whom he believed to be a nurse or nurse practitioner. Id. According to Plaintiff, the nurse noted that there was blood in Plaintiff's nose, blood in both of his ears, and his eyes were bloody. Id. The Ambulatory Health Record Progress Note on the examination notes blood in Plaintiff's nose and both ears, that he was unable to hear out of one ear, he had a jabbing pain when he swallowed, he had a pain level of 10/10 on palpitation of his left jaw, he was unable to open his mouth, and his eyes were red. (Dkt. No. 131-32 at 66.) Plaintiff was referred to the CHVP Medical Center ("Medical Center"). Id. at 66.
A CT of Plaintiff's cervical spine done at the Medical Center on January 23, 2010, showed no fracture or dislocation. Id. at 68. A facial bones CT was also performed and no evidence of facial fracture was found. Id. at 69. An x-ray of Plaintiff's left hand taken on February 17, 2010, showed no fracture, dislocation, or adjacent soft tissue abnormality. Id. at 76.
Plaintiff was, however, found to have a left tympanic membrane perforation (ruptured ear drum) on January 23, 2010, and was referred to an ENT for follow up. Id. at 70. According to DOCCS records, a mandible x-ray done on January 29, 2010, was negative for fracture. Id. at 72. Plaintiff was found by Dr. Oliveira, DDS, to have a hematoma on the left side of his neck that might require draining, and a specialty care appointment with the ENT for evaluation of the hematoma was scheduled. Id. at 72-73. Plaintiff was examined by an ENT on February 2, 2010, and found to have a bilateral tympanic membrane perforation, neck contusion, and a deviated septum. Id. at 74-75.
D. Claim Against Defendant Lecuyer
At the time Plaintiff was searched, Strong allegedly found a weaponized tooth brush in Plaintiff's front coat pocket. (Dkt. No. 129-5 at 1-2.) When interviewed by Rendle, Plaintiff denied that the bag of marijuana and weapon belonged to him. Id. After Plaintiff filed a complaint regarding the alleged assault in the Court of Claims, he learned from Assistant Clinton County District Attorney Collyer that he had been indicted on weapons and drug charges in Clinton County. (Dkt. No. 129-4 at 54-55.)
During the course of the criminal prosecution, Collyer learned from Plaintiff's defense counsel that Plaintiff might have suffered injuries at Clinton that may have been linked to the issues in the criminal matter. (Dkt. No. 129-9 at 1.) On July 12, 2011, Collyer obtained a judicial subpoena duces tecum to obtain Plaintiff's medical records. (Dkt. Nos. 129-8 at 1; 129-10 at 1-4.) After receiving the records, Collyer wrote to the Hon. Kevin K. Ryan informing him that he had learned from the subpoenaed records, including DOCCS Ambulatory Health Record Progress Notes, Inmate Injury Reports, and Medical Center records, that it appeared Plaintiff had suffered facial trauma and a perforated left eardrum on or about January 21, 2010, the date of the criminal offenses. (Dkt. No. 129-9 at 1.) The information raised concerns about what had transpired that were significant enough to lead the People of the State of New York to decide against prosecuting Plaintiff on the weapons and drug charges on July 13, 2011. Id.
Plaintiff claims that Collyer had asked Defendant Nurse Administrator Lecuyer to have Plaintiff sign a HIPAA release so that Collyer could obtain his medical records. (Dkt. No. 129-4 at 15-16.) When Plaintiff refused to sign the release, Lecuyer told him Collyer would get the records anyway. Id. at 16. According to Plaintiff, Collyer did obtain copies of his medical records without his consent. Id. In his amended complaint, Plaintiff has alleged that Lecuyer violated his right to medical privacy under the Fourteenth Amendment by giving Collyer copies of his medical records without authorization. (Dkt. No. 6 at ¶ 58.)
III. APPLICABLE SUMMARY JUDGMENT LEGAL STANDARDS
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56©; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
Plaintiff's Amended Complaint this case was properly verified under 28 U.S.C. § 1746. (Dkt. No. 6 at 14.) See LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (use of the language "under penalty of perjury" substantially complies with § 1746).
In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." "To defeat summary judgment, . . . nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "[T]o satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations. "Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
When considering cross-motions for summary judgment, a court "must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Hotel Employees & Rest. Employees Union, Local 100 of New York, N.Y. & Vicinity v. City of New York Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir. 2002) (quoting Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (internal quotation marks omitted).
IV. ANALYSIS
A. Official Capacity Claims for Money Damages
Plaintiff has sued all of the Defendants for money damages under § 1983 in both their individual and official capacities. (Dkt. No. 6 at ¶ 1. ) Defendants seek summary judgment on Plaintiff's § 1983 claims for money damages against them in their official capacities on the grounds that the claims are barred by the Eleventh Amendment. (Dkt. No. 129-2 at 18.)
The Eleventh Amendment protects states against suits brought in federal court. Alabama v. Pugh, 438 U.S. 781, 782 (1978). The immunity granted the states under the Eleventh Amendment extends beyond the states themselves to state agents and instrumentalities that are effectively arms of the state. Woods v. Rondout Valley Cent. School Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006). The Eleventh Amendment bars all money damages claims against state officials acting in their official capacities, including the DOCCS Defendants herein. Kentucky v. Graham, 473 U.S. 159, 167-68 (1985); Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (an inmate plaintiff's claims for damages against individual DOCCS employees sued in their official capacities are considered claims against New York and are thus barred by the state's Eleventh Amendment immunity).
Therefore, the Court recommends that Defendants be granted summary judgment as to Plaintiff's § 1983 claims for money damages against them in their official capacities on Eleventh Amendment grounds.
B. Exhaustion of Administrative Remedies as to Claims Against Defendants Lecuyer and Mailloux
Defendants Lecuyer and Mailloux seek summary judgment on the grounds that Plaintiff has failed to exhaust his administrative remedies with respect to his claim for the violation of his right to medical privacy against Lecuyer under the Fourteenth Amendment and his Eighth Amendment failure to intervene claim alleged against Mailloux.
1. General Exhaustion Requirements Under the Prison Litigation Reform Act and the DOCCS Inmate Grievance Procedure
"The Prison Litigation Reform Act of 1995 ("PLRA"), mandates that an inmate exhaust 'such administrative remedies as are available' before bringing suit to challenge prison conditions. 42 U.S.C. § 1997e(a)." Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1855 (2016). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). In New York state prisons, DOCCS has a well-established three-step internal grievance procedure ("IGP"). N.Y. Comp. Codes R. & Regs. ("NYCRR") tit. 7, § 701.5 (2013).
Generally speaking, the DOCCS IGP involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. at § 701.5(a) (2010). A representative of the facility's inmate grievance resolution committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance (Id. at § 701.5(b)(2)), and issues a written decision within two working days of the conclusion of the hearing. Id. at § 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. at § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. at § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the Central Office Review Committee ("CORC") for a decision under the process applicable to the third step. Id. at § 701.5(c)(3)(I).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. at § 701.5(d)(1)(I). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. at § 701.5(d)(3)(ii).
The IGP has an expedited procedure for harassment grievances which pertain to "[e]mployee conduct meant to annoy, intimidate, or harm an inmate." Id. at § 701.11(a). The grievance is sent directly to the Superintendent, who is required to conduct an investigation and render a decision. Id. at § 701.11(b). An appeal from the Superintendent's decision is taken to CORC. Id. at § 701.11(b)(7).
If a prisoner has failed to properly follow each of the applicable steps prior to commencing litigation, he has failed to exhaust his administrative remedies. Woodford, 548 U.S. at 93. Because failure to exhaust is an affirmative defense, defendants bear the burden of showing by a preponderance of the evidence that a plaintiff has failed to exhaust his available administrative remedies. See Jones, 549 U.S. at 216 ("We conclude that failure to exhaust is an affirmative defense under the PLRA"); Bailey v. Fortier, No. 09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *6 (N.D.N.Y. Oct. 4, 2012) (the party asserting failure to exhaust bears the burden of proving its elements by a preponderance of the evidence).
2. Analysis of Administrative Exhaustion as to the Claim Against Lecuyer
The Inmate Grievance Program Supervisor ("IGP Supervisor") at Clinton has stated in her Declaration that as IGP Supervisor, she is one of the persons responsible for keeping records of grievances filed at Clinton, and that the grievance records show that Plaintiff did not file a grievance regarding his right to privacy violation claim against Lecuyer. (Dkt. No. 129-4 at ¶¶ 1, 3-4, 18.) The Assistant Director of the DOCCS IGP has submitted a Declaration in which he has stated that he is the custodian of records maintained by CORC, and that based upon a review of CORC records, Plaintiff at no time appealed a grievance for violation of his right to privacy at Clinton on January 21, 2010, or at any time thereafter. (Dkt. No. 129-8 at ¶¶ 1-2, 10, 13.)
Plaintiff contends that he exhausted his administrative remedies with regard to his right to privacy claim against Lecuyer through the filing of his February 8, 2010, grievance. (Dkt. Nos. 131-30 at 3;145 at 4.) However, Plaintiff's February 8, 2010, predated the criminal charges that led to Collyer's involvement and his request for issuance of the July 11, 2011, judicial subpoena duces tecum for Plaintiff's medical records regarding the January 21, 2010, incident. (Dkt. No. 129-8 at 1.) Therefore, Plaintiff's February 8, 2010, grievance could not possibly have included his violation of privacy claim against Lecuyer. Furthermore, there is no mention of the disclosure of Plaintiff's medical records by Lecuyer in the February 8, 2010, grievance. (Dkt. No. 131-32 at 3.)
The Court finds that Plaintiff failed to exhaust his administrative remedies with regard to his claim against Lecuyer. Furthermore, Plaintiff has made no claim or offered any evidence that the grievance procedure was unavailable to him with regard to his claim against Lecuyer. See Ross, 136 S.Ct. at 1859-60 (the administrative procedure for exhaustion is unavailable where it operates as a simple dead end with officers unable or consistently unwilling to provide relief to aggrieved inmates; it is so opaque that it becomes, practically speaking, incapable of use; or when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation").
Based upon the foregoing, the Court recommends that Defendant Lecuyer's motion for summary judgment on failure to exhaust grounds be granted and Plaintiff's cross-motion for summary judgment against Lecuyer be denied.
3. Analysis of Administrative Exhaustion as to the Claim Against Mailloux for Failure to Intervene
Defendant Mailloux was identified by name in grievance complaint (CL-59669-10) filed by Plaintiff with regard to the incident on January 21, 2010. (Dkt. No. 131-32 at 3.) Mailloux nonetheless seeks summary judgment on Plaintiff's failure to intervene claim on exhaustion grounds because Plaintiff did not specifically allege in the grievance that Mailloux had failed to intervene in the alleged assault against him. (Dkt. No. 129-2 at 9-10.)
The absence from the summary judgment record of an initial determination of the grievance by the IGRC, as well as the subject matter of the grievance indicate that the grievance was handled under the expedited procedure for harassment grievances at 7 NYCRR § 701.11.
Under the PLRA, to properly exhaust administrative remedies, a prisoner must complete the administrative review in accordance with the procedural rules defined by the prison grievance system. See Jones, 549 U.S. at 218 ("the level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion"). 7 NYCRR § 701.5(a)(2) (2007) provides that the complaint "must contain a concise, specific description of the problem and the action requested."
In Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004), the Second Circuit described the exhaustion requirement as "not dissimilar to the rules of notice pleading" and held that because the PLRA's exhaustion requirement requires that prison officials be afforded the time and opportunity to address a complaint internally, "[i]n order to exhaust . . . inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." In Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006), the Court explained that "[a]s in a notice pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming." (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). A grievance "may not be so vague as to preclude prison officials from taking appropriate measures to resolve the complaint internally." Brownell, 446 F.3d at 310.
Plaintiff's February 8, 2010, grievance regarding the alleged assault on January 21, 2010, states that Mailloux escorted him from the north yard and pat frisked him. (Dkt. No. 131-32 at 3). The grievance further states that Mailloux, along with Strong, escorted Plaintiff to the facility hospital emergency room where Strong conducted a strip frisk of Plaintiff and then, with Rendle and six other security staff members, assaulted Plaintiff, punching him in the face and viciously and brutally punching, kicking, choking, stomping, and beating him for ten minutes. Id.
The grievance clearly places Mailloux in the emergency room prior to the alleged assault. Id. The grievance is silent, however, as to whether Mailloux remained in the emergency room area after escorting Plaintiff there and was aware of the ongoing assault, or had left the area prior to the assault. Id. The Court finds that by placing Mailloux in the emergency room in close temporal proximity to the strip search and alleged assault and giving no indication in the grievance that Mailloux had thereafter left the area, Plaintiff provided enough information to allow prison officials to take "appropriate measures to resolve the complaint internally" as to the failure to protect claim against Mailloux. Brownell, 446 F.3d at 310.
Furthermore, the record evidence supports the inference that prison officials did investigate Mailloux's actions in connection with the complaint set forth in Plaintiff's grievance and were informed by Mailloux that he did not observe the use of force. A very cursory Superintendent's determination of Plaintiff's grievance, dated March 2, 2010, states that "[i]nvolved staff have gone on record denying grievant's allegations. No evidence of staff malfeasance was found." (Dkt. No. 129-27 at 1.) Inasmuch as Mailloux was identified in Plaintiff's grievance, the Court can infer for purposes of this motion that Mailloux was one of the "involved staff" referenced in the Superintendent's decision. In addition, prior to CORC's August 4, 2010, determination upholding the decision of the Superintendent (Dkt. No. 131-32 at 5), Mailloux submitted a March 18, 2010, memorandum relevant to Plaintiff's failure to intervene claim to Rendle, in which he stated that he at no time observed force being used on Plaintiff on January 21, 2010. (Dkt. No. 131-22 at 2.) Moreover, as noted above, under Second Circuit case law, the fact that the grievance does not specifically assert a claim for failure to intervene in the alleged assault in no way mandates a finding that Plaintiff failed to exhaust his claim against Mailloux. See Brownell, 446 F.3d at 310 (grievant need not articulate legal theories).
Based upon the foregoing, the Court finds that Plaintiff's grievance was adequate to exhaust his administrative remedies with respect to his failure to intervene claim against Defendant Mailloux and recommends that Mailloux's motion for summary judgment on exhaustion grounds be denied.
C. Eighth Amendment Excessive Force Claims Against Strong and Rendle
Strong and Rendle have not moved for summary judgment on Plaintiff's Eighth Amendment excessive force claims against them. Plaintiff, however, has cross-moved for summary judgment on those claims. (Dkt. No. 131.)
"The Eighth Amendment prohibits the infliction of cruel and unusual punishments . . . including the unnecessary and wanton infliction of pain." Giffen v. Crispen, 193 F.3d 89, 91 (2d Cir. 1999) (citation and internal quotation marks omitted). An Eighth Amendment excessive force claim has two elements "one subjective focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson v. McMillian, 503 U.S. 1, 7-8 (1992)).
"The subjective component of the claim requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (quoting Wright, 554 F.3d at 268)) (internal quotation marks omitted). The test for wantonness on an excessive force claim "is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Id., (quoting Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (in determining whether defendants acted maliciously or wantonly, "a court must examine several factors including: the extent of the injury and mental state of the defendant, as well as the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response.") (citation and internal quotation marks omitted)).
The objective component requires a showing that the "conduct was objectively 'harmful enough' or 'sufficiently serious' to reach constitutional dimensions." Harris, 818 F.3d at 64 (citation omitted). The Supreme Court has emphasized that after Hudson, the "core judicial inquiry" shifted "from the extent of the injury to the nature of the force specifically, whether it was nontrivial and 'was applied . . . maliciously and sadistically to cause harm.'" Wilkins v. Gaddy, 559 U.S. 34, 39 (2010) (quoting Hudson, 503 U.S. at 7).
Plaintiff contends that while he was handcuffed, Strong and Rendle punched him in the face, shoulder, ribs, and stomach area; choked him; kicked him in the chest, shoulder, head, stomach, legs, and back; and poked him in the ribs with a baton, when he told them he did not know whose drugs were found in the yard. (Dkt. Nos. 6 at ¶ 45; 129-4 at 6-7.) Medical records submitted by Plaintiff in support of his motion reveal that it was subsequently found that both of Plaintiff's eardrums were ruptured, he had a hematoma on his neck, and he had a deviated septum. (Dkt. No. 131-32 at 72-75.) As discussed below, however, Defendant Taylor, who examined Plaintiff shortly after the alleged assault, documented only a slight inflammation of Plaintiff's left jaw and hand. (Dkt. No. 131-32 at 62.)
Were the Court to consider only Plaintiff's evidence in support of his excessive force claim, it would find that Strong and Rendle had the necessary level of culpability to establish the subjective component of Plaintiff's claim. However, Strong and Rendle have denied using any force against Plaintiff on January 21, 2010, both in documents that are a part of the facility investigation into the incident and in Declarations submitted by them in opposition to Plaintiff's motion. (Dkt. Nos. 129-13 at ¶ 10; 129-15 at 1; 129-16 at ¶ 10; 131-21 at 2.) Moreover, as discussed below, Defendant Taylor, who examined Plaintiff shortly after the alleged assault, documented only a slight inflammation of Plaintiff's left jaw and hand. (Dkt. No. 131-32 at 62.)
On a summary judgment motion, a court may not "weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). "The weighing of the evidence and the determination as to which version of the events to accept are matters for the jury." Id. at 856. See also Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996) (on a summary judgment motion "the court should not weigh evidence or assess the credibility of witnesses . . . . These determinations are within the sole province of the jury." ).
Because weighing the conflicting evidence in the summary judgment record and assessing the credibility of the parties is within the sole province of the jury, the Court recommends that Plaintiff's motion for summary judgment against Strong and Rendle on his Eighth Amendment excessive force be denied.
D. Eighth Amendment Failure to Intervene Claim Against Mailloux
Mailloux has not moved for summary judgment on the merits with regard to Plaintiff's claim that he failed to intervene in the alleged excessive force by Strong and Rendle. Plaintiff has, however, cross-moved for summary judgment against Mailloux on the claim.
"The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody." Hayes, 84 F.3d at 620 (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Law enforcement officials, including prison officials, can be held liable under § 1983 for failing to intervene in a situation where another official is violating an inmate's constitutional rights, including the use of excessive force, in their presence. Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001); see also Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (prison official's Eighth Amendment duty to take reasonable measures to guarantee the safety of inmates in their custody includes a duty to protect inmates from harm threatened by other officers). Liability under § 1983 for failure to intervene can arise where a prison corrections officer fails to prevent another corrections officer from committing a constitutional violation if "(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene." Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008), aff'd, 461 F. App'x 18 (2012).
Plaintiff claims that Mailloux was present during Strong and Rendle's use of excessive force on January 21, 2010, and did nothing to intervene. (Dkt. Nos. 6 at ¶¶ 38-40; 129-4 at 5-6; 131-2 at ¶¶ 37-39.) In his memorandum of March 18, 2010, regarding the January 21, 2010, incident, Mailloux states that he at no time observed any force used on Plaintiff. (Dkt. No. 131-22.) In his Declaration, Mailloux claims that he waited outside the facility emergency room while Plaintiff was strip frisked and was never present inside the first floor emergency room with Plaintiff on January 21, 2010. (Dkt. No. 129-18 at ¶¶ 7-8.) According to Mailloux, he walked to the lab to have the green leafy substance found in the bag tested after Plaintiff was strip frisked. Id. at ¶ 9.
Given the foregoing, the Court finds that there are material issues of fact in dispute with regard to Plaintiff's failure to intervene claim against Mailloux and recommends that Plaintiff's cross-motion for summary judgment on his failure to intervene claim be denied.
E. Eighth Amendment Medical Indifference Claim Against Defendants Strong, Rendle, and Taylor
Defendants Strong, Rendle, and Taylor seek summary judgment on Plaintiff's Eighth Amendment medical indifference claim. Plaintiff has cross-moved for summary judgment on the claim. For reasons explained below, the Court finds that there are material issues of fact in dispute precluding summary judgment in either Plaintiff's or Defendants' favor on the claim.
An inmate's claim that he was denied medical care is also analyzed under the Eighth Amendment's prohibition of cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 101-03 (1976). "[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." Id. at 104 (citation and internal quotation marks omitted). As with other Eighth Amendment cruel and unusual punishment claims, an inmate must satisfy a standard that includes both objective and subjective components. See Taylor v. Goorde, 548 F. App'x 696, 697-97 (2d Cir. 2013).
The objective component examines whether the inmate was actually deprived of adequate medical care and whether the denial was "sufficiently serious." Salahuddin, 467 F.3d at 280. Where there is a complete failure to provide treatment, the court must look to the seriousness of the inmate's medical condition. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). The subjective component concerns the defendant's mental state, and requires that the defendant acted "with deliberate indifference to inmate health" "a mental state equivalent to subjective recklessness [as the term is used in criminal law]." Salahuddin, 467 F.3d at 280. That requires a showing that the charged official was aware of facts from which the inference could be drawn that a substantial risk of harm existed, drew that inference, and did nothing. See Farmer, 511 U.S at 837.
1. Serious Medical Condition
A "serious medical condition" is a "condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J. dissenting) (citations omitted); accord Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Relevant factors to consider when determining whether an alleged medical condition is sufficiently serious include, but are not limited to: (1) the existence of any injury that a reasonable doctor or patient would find important and worthy of comment or treatment; (2) the presence of a medical condition that significantly affects an individual's daily activities; and (3) the existence of chronic and substantial pain. Chance, 143 F.3d at 702-03.
Plaintiff has alleged a brutal beating at the hands of Strong and Rendle on January 21, 2010. (Dkt. No. 129-4 at 6-7.) The Court has found that there are material issues of fact in dispute regarding Plaintiff's excessive force claim in light of Strong and Rendle's denials and Taylor's initial report of Plaintiff's medical condition following the alleged assault. (Dkt. Nos. 129-13 at ¶ 10; 129-16 at ¶ 10.) Plaintiff testified at his deposition that after the beating, he was unable to get up on his own and had to be half carried and half dragged from the emergency room to SHU by Strong and Guynut. Id. at 9. Plaintiff also testified that after the assault, he had blood coming out of his ear and lip, something on his neck, and skin scraped off his shoulder, back, arms, and legs from the stomping during the assault. (Dkt. No. 129-4 at 7.) The evening of the alleged assault, Plaintiff put in a sick call slip, and the next day told the nurse that, among other things, his ear was oozing and he could not hear. Id. at 10.
The facility nurse who examined Plaintiff on January 23, 2010, noted that Plaintiff was unable to hear out of one ear, had a painful left jaw, and was unable to open his mouth. (Dkt. No. 131-32 at 65-66.) A decision was made that Plaintiff required outside medical treatment. Id. When Plaintiff was examined at the Medical Center on January 23, 2010, he was diagnosed with a ruptured left eardrum and referred to an ENT. Id. at 70. Plaintiff was subsequently found to have a hematoma on the left side of his neck, ruptured ear drums in both ears, a neck contusion, and a deviated septum. Id. at 72-75.
Defendants Strong, Rendle, and Taylor claim that Plaintiff has failed to establish that he suffered from a serious medical need on January 21, 2010. (Dkt. No. 129-2 at 12-13.) According to Taylor, he did not observe any bleeding on Plaintiff, and he recorded all of the injuries he saw on Plaintiff when he examined him on January 21, 2010. (Dkt. No. ¶¶ 9, 13.) Those injuries included only a slight inflammation on the left side of Plaintiff's jaw and his left hand. (Dkt. No. 131-32 at 62.) Defendants also rely on the notation that no bleeding was noted in the January 21, 2010, entry on Plaintiff's Ambulatory Health Record. (Dkt. Nos. 131-32 at 6; 129-22 at 10.)
Defendants further note that the results of CT scans and x-rays performed at the Medical Center on January 23, 2010, revealed no evidence of fractures to Plaintiff's facial bones or bones in his left hand and fingers. (Dkt. No. 129-2 at 12.) As to Plaintiff's ruptured eardrum found on January 23, 2010, Defendants argue that it did not constitute a serious medical condition because the discharge note from the Medical Center found that "recently ruptured ear drums usually heal on their own," and it "could have been cause by injury or infection." (Dkt. No. 129-2 at 13.) They also note that follow up testing at the Albany Medical Center on August 12, 2010, found that the ear drum had healed and Plaintiff's hearing was normal.
The Court finds that Plaintiff has raised an issue of material fact with respect to Taylor's findings regarding Plaintiff's physical condition when he examined him on January 21, 2010. Plaintiff testified at his deposition that when Taylor came to SHU to do a medical assessment of Plaintiff, as required before Plaintiff would be admitted to SHU, Taylor told the SHU sergeant that Rendle had instructed him not to document any significant visible injuries or complaints by Plaintiff. (Dkt. No. 131-32 at 62.) According to Plaintiff, the SHU sergeant told Taylor he had to document something so that Plaintiff could be housed in SHU. Id. While Taylor has denied anyone telling him not to record injuries and contends he recorded all injuries he saw (Dkt. No. 129-21 at ¶¶ 13-14), the Court finds that the record, including the allegations in Plaintiff's Amended Complaint and his deposition testimony, along with medical records from January 23, 2010, and subsequent thereto regarding Plaintiff's physical condition, reveal questions of material fact as to whether all of Plaintiff's injuries were recorded by Taylor, and whether Plaintiff presented with a serious medical condition as required for an excessive force claim on January 21, 2010.
Further, the Court finds that there are arguably material questions of fact as to whether the ruptured ear drum found on January 23, 2010, constituted a serious medical condition. The facility nurse who noted, inter alia, blood in both of Plaintiff's ears found Plaintiff's condition sufficiently serious to telecommunicate with Dr. Adam, who informed her by telemed that Plaintiff should go to the Medical Center. (Dkt. No. 131-32 at 65.) Moreover, although the records from the Medical Center indicate that ruptured ear drums generally heal on their own, the Medical Center found Plaintiff's ruptured ear drum sufficiently serious to refer him to an ENT for follow up, and follow up continued into August 2010, when Plaintiff was given a hearing test. (Dkt. Nos. 131-32 at 70; 139-1 at 16-17.)
As noted above, Plaintiff was subsequently found to have two ruptured ear drums as well as a deviated septum. (Dkt. No. 131-32 at 74-75.) --------
2. Deliberate Indifference
The Court also finds that there are material questions of fact on the issue of whether Strong, Rendle, and Taylor were deliberately indifferent to Plaintiff's allegedly serious medical needs on January 21, 2010. Defendants Strong, Rendle, and Taylor assert that they were not deliberately indifferent to Plaintiff's medical needs because Strong and Rendle escorted Plaintiff to SHU immediately after the strip frisk on January 21, 2010, and upon Plaintiff's admission to SHU, Taylor conducted a medical evaluation and noted only a slight inflammation in Plaintiff's jaw and hand and treated Plaintiff by ordering Ibuprofen and ice. (Dkt. No. 129-2 at 14-15.)
However, as noted above, Plaintiff claims that he had blood coming out of his ear when he was taken to SHU, and he heard Taylor tell the SHU sergeant that he had been instructed by Rendle not to document any significant injuries or complaints. Furthermore, while Taylor claims that Plaintiff did not tell him about what had transpired in the exam room, Plaintiff contends that he did. (Dkt. Nos. 129-4 at 9; 129-21 at ¶ 12.) As to Strong and Rendle, while the Court has concluded that there are questions of fact with regard to Plaintiff's excessive force claim, were a jury to find that Plaintiff was assaulted by Strong and Rendle in the manner he claims and injured in the manner he claims, the jury might reasonably find that not taking Plaintiff for medical treatment after the assault constituted deliberate indifference to his serious medical needs.
Based upon the foregoing, the Court finds that there are questions of material fact in dispute with regard to Plaintiff's Eighth Amendment medical indifference claim that precludes a grant of summary judgment to either the moving Defendants or Plaintiff, and recommends that Defendants' motion and Plaintiff's cross-motion be denied.
ACCORDINGLY, it hereby
RECOMMENDED that Defendants' motion for partial summary judgment (Dkt. No. 129) be GRANTED as to Defendant Lecuyer and be DENIED as to Defendants Strong, Rendle, Mailloux, and Taylor; and it is further
RECOMMENDED that Plaintiff's cross-motion for summary judgment (Dkt. No. 131) be DENIED; and it is hereby
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: July 12, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge